Civil Commentary on Criminal Law

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Author Steve Levin

In the final month of this Congressional session, the Senate may take up criminal justice reform. The First Step Act – a bill led by a bipartisan group that includes Judiciary Committee Chairman Chuck Grassley (R-IA) and Democratic Whip Dick Durbin (D-IL) – attempts to chip away at this country’s mass incarceration problem, reduce recidivism, and walk back some unfair sentencing practices. It proposes to:

repeal the three-strikes life sentence for drug crimes, and instead implement a 25-year penalty for third offenses;

reduce the two-strike drug penalties from 20 years to 15 years;

allow a firearm sentencing enhancement to run concurrently with the underlying penalty (currently, a defendant who convicted of a non-violent drug offense whilst nevertheless possessing a firearm is essentially given two sentences);

expand the sentencing “safety valve” so that judges can deviate from the harsh penalties prescribed for certain drug crimes;

retroactively reduce sentences for those convicted of crack cocaine offenses before the law was changed to remedy the disproportionate treatment of crack to powder cocaine; and

allow low-risk inmate who participate in anti-recidivism programs to receive earned time credits and thus serve the remainder of their sentence in a supervised release setting.

A more modest version of the bill was already passed by the House of Representatives. Many hope the Senate will vote on – and pass – the amended version before the end of this session.

As defense attorneys, we see the broken parts of our system every day. We have a constitutional duty to fight for just outcomes at each stage of the case, and sentencing is the most critical stage for many of our clients. This is especially true for those charged with and convicted of white collar crimes, who often want, more than anything, a chance to rebuild the lives.

But getting a fair sentence is not easy. The court can sentence defendants based on conduct for which they were not convicted and evidence that would be inadmissible at trial. The court also considers the U.S. Sentencing Guidelines, a nuanced scheme that, among other challenges, may call for defendants to re-serve time they had already served in a state facility. But as defense attorneys, we focus in this work and do whatever is necessary to make sure the punishment fits the crime (and importantly, the offender). Nevertheless, systemic reforms are undoubtedly needed.

The First Step Act is a bipartisan policy, and bipartisanship is rare in today’s climate. Criminal justice reform has become an area where both sides of the aisle can find common ground. Republicans and fiscal conservatives see mass incarceration as a wasteful use of public funds and loss of human capital, and the federal government’s role in our criminal/legal apparatus – in which public safety is a police power of the states – as far too big. For Democrats and social justice progressives, mandatory minimums and strict drug laws are tools of a discriminatory system – applied disproportionately to certain defendants – and crime should be approached as a consequence of poverty, illness and trauma.